Monday, November 28, 2011

HOW DOES DIVORCE AFFECT SOCIAL SECURITY BENEFITS?

We work throughout our entire adult lives and, during that time, most of us are required to pay into the Social Security System.  The payoff comes when we hit retirement age and are able to start receiving Social Security benefits.  But what happens when a person gets divorced?  "How will the divorce affect my Social Security?"  "Do I lose half of my benefits?"  "Am I entitled to my husband's social security?"   These are questions I frequently hear from my clients.

The answer is that you do not lose half of your Social Security when you divorce -- but after that, the matter can get complicated.  If you are widowed, then you may be entitled to social security payments as a survivor spouse.  If you are divorced (not widowed), and you are of retirement age, then you could be entitled to spousal benefits, or to your own benefits.  If you had multiple marriages, then you might have to choose between several different options.

I recently came across a Los Angeles Times article which sheds some light on the subject.  In the March, 2011 article, entitled "Divorce can complicate Social Security claims; Knowing the rules involving spousal and survivor benefits can prevent costly errors," author Kathy M. Kristof makes the following points:

"If you were married for at least 10 years to someone who paid into the Social Security system, you are entitled to a spousal benefit, even if you are divorced from that person.  Eligibility does not depend on whether or not you also worked and paid into the system."

"Spousal benefits, if claimed at your full retirement age, usually amount to 50% of the wage earner's full benefit.  If you claim benefits early, the amount you get is reduced."

"If you worked for 10 years and paid into the Social Security system, you also may be entitled to benefits on your own work record.  In that case you must choose -- you cannot claim both your own and spousal benefits.  You can, however, claim the one that gives you the most money."

"If you remarry before age 60, you lose your ability to claim spousal or survivor benefits based on a former spouse . . . If you remarry after age 60, all of your rights to spousal and survivor benefits based on your former spouse's record are retained for your lifetime." 

"If you are single now but were married to more than one person for more than 10 years each, you may be eligible for spousal benefits based on the earnings records of each of those former spouses . .   You don't get to add up all the benefits, of course, but you do get to choose the benefit that's best.  So, if one spouse was an executive with maximum Social Security earnings, the next spouse was a low-wage earner, and the third worked in a job that didn't earn Social Security credits, you can claim the benefit from the first spouse, which is likely to amount to the most money."

"But what if spouse No. 2 died before you claimed Social Security benefits?  Then you would be entitled to spousal benefits on spouse No. 1 or survivor benefits on spouse No. 2.  Because survivor benefits are 100% of the working person's entitlement and spousal benefits are just 50%, the survivor benefits may be more generous, even if spouse No. 2 didn't earn as much.  You can claim the one that pays the most."


Social Security is an important part of your long-term planning for retirement.  In the event of a divorce, you are given choices, but those choices aren't always easy.  Having the assistance of a legal counselor and/or a financial expert can go a long way in helping you to properly plan for your future.


Gary Frank is a Family Law Attorney with over 30 years of experience in handling division of property, retirement assets, and all other matters arising out of divorce and/or legal separation.  If you are in need of a consultation, please do not hesitate to give us a call at 602-383-3610, or you can contact us by email: gary.frank@azbar.org; or through our website at http://www.garyfranklaw.com/.

Tuesday, November 22, 2011

CO-PARENTING IS A TOUGH CHALLENGE, BUT IT'S WORTH THE EFFORT

Co-parenting is often the most difficult challenge that parents face following a divorce.

Poor co-parenting can not only be a source of extreme and ongoing stress for the parents but, worse yet, it can be emotionally devastating to the children.  It can lead to repeated trips back to the courthouse, and many thousands of dollars in legal fees.  But it doesn't have to be that way.

Disagreements over discipline, supervision, parental involvement, or parenting styles are factors which contribute to countless divorces.  So, it is not surprising that, in many of those cases, the problem only gets worse when the divorce becomes final.  After all, if the parents could not agree on parenting issues when they were married, why would they expect things to get better after they divorce and are living apart?

Co-parenting is essential, but it is not easy.  It requires placing the best interests of the children ahead of your own needs.  It requires managing your emotions, and finding a way to deal with your fear, anger, and negative feelings in a healthy and positive manner.  Finally,  it requires a commitment to always take the "high-road," even when the other parent is refusing to cooperate or co-parent.

Taking the high-road is not a sign of weakness.  It doesn't mean giving in or compromising the safety of your child.  What it means is not "taking the bait" when the other parent is pushing your buttons.  It means not "defending yourself" by badmouthing the other parent to your children when the other parent may be playing that game.  It means not putting your children in the middle of the dispute by forcing them to witness angry or violent arguments.  It means not making a child choose one parent over the other.  It means not using children as messengers or spies, or as weapons to hurt the other parent.  It means not sabotaging your child's relationship with your ex-spouse, even though he or she might not be such a great parent.  It also means never allowing yourself to become so emotionally needy that your child feels that it is his or her responsibility to take care of you.  Taking the high-road is a sign of strength.  It is something you can do to assure that the child whom you love so much can grow up to be happy and well-adjusted.

The first step in learning to co-parent is realizing that, after the divorce, there will be times when your children are with your ex- and, during those times, you will no longer have control.  Therefore, it is not only in your children's best interest -- but it is to your own advantage to make sure that you and your ex- are communicating when it comes to parenting.

Co-parenting doesn't mean that you and your ex- need to be friends.  You just need to be able to communicate in a business-like manner for the purpose of making decisions affecting your common children.  Your communication should be direct and to the point.  No sniping.  No angry comments meant to hurt the other's feelings.  Stick to the matter at hand.  Don't bring up tangential issues that have little or nothing to do with the children.  By focusing on the issue before you, and keeping the children in mind, you will be able to communicate effectively, and the children's needs will be met.  Eventually, all of the emotion arising from the divorce will fade and you will find it much easier to deal with each other -- but the time to start working on communication is now.  It's hard, I know, but it is certainly worth the effort  The end result will be children who feel safe, secure, happy, and loved.

An important part of successful co-parenting is sharing information about the children with the other parent:  "Sally came home from school today with a fever";  "Billy is in a play next week in Ms. Hollister's classroom";  "Meagan has a dentist appointment on Thursday"; "Justin's high school report card came out yesterday - here's a copy."  Sharing information is easy.  If you don't feel comfortable talking on the phone, then you can do it by mail, email, or a text message.  Sharing information allows parents stay on the same page, and it helps to assure that the children have two parents who are both involved in their lives. 

One of the biggest challenges of co-parenting is when a divorcing couple has very different parenting styles.  This is not only a common problem, but I'd venture to say that it is the case in the majority of divorces (and marriages, too).  "She's too strict."  "He's a Disneyland dad."  "He doesn't supervise the children like I do."  "She's too controlling with the children."  "He won't let the children be children."  "She doesn't set limits."   The fact is that there is no one right way to parent.  You will have to get used to the idea that when the divorce is final, there will be blocks of time when the children are alone with the other parent.  Co-parenting does not mean imposing your will on the other parent.  Attempting to do so will lead to disagreements and anger, and will likely be futile in the end.  But by communicating respectfully and effectively, you can share ideas and avoid many misunderstandings and problems.  Co-parenting may sometimes involve respecting the other parent's right to do things her/his way when the children are in her/his care.  Obviously, if your child is being abused or neglected in the home of the other parent, then it is your duty to take the necessary measures to stop it.  But where the issue is simply differing parenting styles, you should try to cooperate to the best of your ability and be as consistent as possible; and you may need to let the children know that the rules at Dad's house are slightly different from those at Mom's. 

Over the years, I have found that "Post-Divorce Counseling" can be very helpful.  This is not marital counseling, and it is not therapy.  Rather, post-divorce counseling consists of both parents meeting together with a counselor (such as a child psychologist or child-development specialist) on a quarterly basis, or every six months, or once a year, or only as-needed -- in order to discuss issues involving the children.  In the sessions, the parents can bring up any concerns they may have, discuss any problems the children are experiencing, and examine different solutions with the help of an expert.

Co-parenting after divorce is an ongoing process.  It can be difficult and sometimes frustrating.  As much as you might like to put the relationship with your ex-spouse behind you and move on following a divorce, you have to realize that the two of you share a child.  You always will.  And by communicating and co-parenting, you will increase the odds that your child -- this person whom you both love -- will grow up to be  a happy, productive, and well-adjusted adult.



Gary Frank has been a well-respected Custody and Family Law Attorney, and a Family Mediator, in the Phoenix, Arizona for more than thirty years.  The Law Office of Gary J. Frank P.C. handles a wide array of family law issues, including divorce, custody, modification actions, paternity and maternity cases, and other matters involving children and families.  If you would like a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org or through our web site at www.garyfranklaw.com.

Friday, November 11, 2011

FAILING TO PROTECT CHILDREN FROM ABUSE IS WRONG

The news came this week that Penn State coach Joe Paterno, the winningest coach in college football, has been fired for failing to call the police when he learned that one of his assistant coaches had molested a young boy.  The news was shocking.  Paterno, who is known not only for winning but also for the high percentage of his players who graduate, is among the most respected coaches in the history of football at any level.  After he was fired, football experts and fans across the country came to his defense.  Students at Penn State came out by the thousands to show their support and rioted in the streets.  And I'm thinking:  "Has the world gone crazy?" 

Paterno leaned of the sexual abuse from a graduate student and former football player who witnessed the assistant coach raping and sodomizing a young boy in the locker room shower.  The graduate student never called the police.  Instead, he walked away.  It was not until the following day that he reported the incident to coach Paterno.  Paterno listened to the eye-witness account, and he never called the police.  He merely reported the matter to his superior; and that person ultimately reported the sexual abuse to the University President.  Unbelievably, the President never contacted the police.  Nobody did.  And the criminal was allowed to walk free.  Not surprisingly, he continued to molest children.  In the end, more than eight young boys were his victims, and many more will likely come out of the shadows in the months to come. 

I am a football fan.  I am also a parent.  Penn State's reaction to a first-hand account of sexual abuse sickens me.  From the graduate student, to coach Paterno, and all the way up the food chain to the University President, people who might have helped save a child elected not to do so.  Instead, they callously turned away.  While innocent young boys' lives were being ruined, each and every one of these people were too concerned with their own selfish interests to really care.  As a result, the abuse continued and more lives were destroyed.  Would Paterno have looked the other way if it was his own grandchild being raped in the shower?

Children are incapable of protecting themselves from adult predators.  Each of us has a duty to act decisively when we believe that a child is being abused.  You do.  I do, too.  We all do.  Once Joe Paterno learned that his assistant coach had molested a child, he had an affirmative duty to contact the police.  Not to pass.  Not to punt. Now his stellar 61 year career is over and his reputation is sullied.  There are hoards of people across the country who are rushing to come to his defense.  But who will defend the children?


Gary Frank is an attorney and a children's advocate with over thirty years experience in handling custody and child abuse cases.  He was an appointee to the Governor's Task Force for Prevention of Child Abuse; and he received a Volunteer Attorney award from the Maricopa County Bar Association for his efforts to protect an abused child, after having been asked by a judge to step in and represent the child in a Superior Court custody and dependency case.  If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or email us at gary.frank@azbar; or to contact us through our web site at http://www.garyfranklaw.com/.

Tuesday, November 8, 2011

GRANDPARENTS HAVE A LEGAL RIGHT TO VISITATION UNDER ARIZONA LAW

The United States Supreme Court has held that parents have a fundamental constitutional right to control child rearing. Under Arizona law, a fit parent is presumed to be able to make decisions which are in his/her child's best interests, and the courts will stay out of the decision-making unless it is clear that the parents' decisions could be damaging to the child.

However, Arizona Revised Statutes, Section 25--409 gives a judge the right to intervene and order visitation between a child and her/his grandparents (or great-grandparents) -- even over the objection of the parents -- so long as the grandparents can meet the standards delineated in the statute. Basically, a grandparent must be able to prove that visitation rights would be in the best interests of the child and that any of the following is true:

1. The marriage of the parents of the child has been dissolved for at least three months;

2. A parent of the child has been deceased or has been missing for at least three months (i.e., the parents location has not been determined and the parent has been reported as missing to a law enforcement agency); or

3. The child was born out of wedlock.


In determining the child's best interests the court shall consider all relevant factors, including:

a.  The historical relationship, if any, between the child and the person seeking visitation;

b.  The motivation of the requesting party in seeking visitation;

c.  The motivation of the person denying visitation;

d.  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities; and

e.  If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.


If you are being unfairly deprived of contact with your grandchild and would like to learn more about your rights, then please do not hesitate to call our office for a consultation.


Gary Frank is a Family Law Attorney with over thirty years of experience in dealing with grandparents visitation / custody matters, and advocating for the rights of children.  You can reach us by telephone (602-383-3610), email (gary.frank@azbar.org), or through out website (http://www.garyfranklaw.com/).  We'd be happy to hear from you.